Commentary: Waterboarding, Congress and the President

"The prisoner is bound to an inclined board,
feet raised and head slightly below the feet. Cellophane is wrapped over
the prisoner's face and water is poured over him. Unavoidably, the gag
reflex kicks in and a terrifying fear of drowning leads to almost
instant pleas to bring the treatment to a halt.

"According to the sources, CIA officers
who subjected themselves to the water boarding technique lasted an
average of 14 seconds before caving in. They said al Qaeda's toughest
prisoner, Khalid Sheik Mohammed, won the admiration of interrogators
when he was able to last between two and two-and-a-half minutes before
begging to confess. "

While the Bush Administration has said
that waterboarding is no longer being used by the Central Intelligence
Agency (CIA), it refuses to disavow the practice. And, as I noted in
my analysis for
LLRX of the Military Commissions Act, while Mr. Bush has
said and
said that the U.S. does not torture, he declared in a
signing statement on the defense bill which incorporated John
McCain's
Detainee Treatment Act of 2005, that his powers to protect national
security trumped any limits on interrogation techniques.

On March 8, Mr. Bush
announced in his weekly radio broadcast that he had vetoed
Congress's latest attempt to limit torture,
H.R.
2082, the Intelligence Authorization Act for Fiscal Year 2008, which
would have banned waterboarding on other methods disallowed by the
Army Field Manual, saying, "The bill Congress sent me would take
away one of the most valuable tools in the war on terror -- the CIA
program to detain and question key terrorist leaders and operatives."

On February 13, the Senate had voted
51-45 to pass the Conference Committee's version of the measure,
first introduced May 1, 2007 and passed by the House on May 11 on a
vote of 225-197 .
Presidential candidate John McCain (R-AZ) voted against the measure
despite his prior opposition to waterboarding. Both Clinton and Obama
failed to vote. On March 11, the House failed to override the
President's March 8 veto 225-188.
Only 5 Republicans voted to override:
Roscoe Bartlett (MD), Wayne
Gilchrest (MD), Tim
Johnson (IL), Ron Paul (TX)
and Chris Smith (NJ).

The veto came as no surprise, following his executive
order on July 20, 2007, purporting to
define the Geneva conventions requirements with regards to CIA
interrogation techniques. The order allowed "enhanced interrogation
techniques" and may exempt the CIA from Common Article 3 of the Geneva
Conventions.

During confirmation hearings, Attorney
General nominee Michael Mukasey promised in an
October 30, 2007 letter that, if confirmed, he would review
waterboarding and other interrogation techniques to determine their
legality. In a December 2007 letter, 30 retired military leaders wrote,
"We believe it is vital to the safety of our men and women in uniform
that the United States not sanction the use of interrogation methods it
would find unacceptable if inflicted by the enemy against captured
Americans. … The current situation, in which the military operates under
one set of interrogation rules that are public and the CIA operates
under a separate, secret set of rules, is unwise and unpractical … What
sets us apart from our enemies in this fight.. is how we behave. In
everything we do, we must observe the standards and values that dictate
that we treat noncombatants and detainees with dignity and respect."

The Democrats on the Judiciary Committee
wrote on
January 23, 2008, prior to his testimony on
January 30,
asking him to make good on that promise. At the hearing Mukasey
continued to equivocate.

CIA Director Gen. Michael Hayden
acknowledged for the first time that the CIA had used waterboarding on
Zubaydah, as well as Khalid Sheikh Mohammed and Abd al-Rahim al-Nashiri
in a
February 5, 2008 Senate Intelligence Committee hearing. While the
Committee does not have the testimony posted on its website, as of this
writing, a February 6 New York Times story,
Intelligence Chief Says Al Qaeda Improves Ability to Strike in U.S.,
by Mark Mazzetti, summarizes Hayden's testimony, as well as that by
Intelligence Chief Mike McConnell that "a future C.I.A. request to use
waterboarding on a detainee would need to be approved both by Attorney
General Michael B. Mukasey and by President Bush." At the same
hearing, Robert S. Mueller III, director of the Federal Bureau of
Investigation, and Lt. Gen. Michael D. Maples, director of the Defense
Intelligence Agency, told the Senators that "their agencies had
successfully obtained valuable intelligence from terrorism suspects
without using what Mr. Mueller called the ''coercive'' methods of the
C.I.A.," according to Mazzetti.

Haden had already
admitted on December 6, 2007 that in 2005, the CIA had destroyed at
least two interrogation tapes, including footage on Zubaydah, which has
resulted in an FBI investigation,
announced
January 2, 2008.

As a result of that testimony, Senator
Richard Durbin (D-IL) wrote a letter February 5 to Attorney General
Michael Mukasey "In light of the Justice Department's continued
non-responsiveness to Congress on the issue of torture, including your
disappointing testimony on waterboarding last week, I have reluctantly
concluded that placing a hold on Judge [Mark] Filip's nomination is my
only recourse for eliciting timely and complete responses to important
questions on torture." Mukasey's
reply "'no one who relied in good faith on the Department's past
advice should be subject to criminal investigation for actions taken in
reliance on that advice" led Durbin and Sheldon Whitehouse (D-RI) to
write a
February 12 letter asking Justice Department Inspector General
Glenn A. Fine and Counsel for Professional Responsibility H. Marshall
Jarrett to investigate "the role of Justice Department officials in
authorizing and/or overseeing the use of waterboarding by the Central
Intelligence Agency." They explained, "the Attorney General's
justification for refusing to open an investigation...does not address
Senator Durbin's request that 'a Justice Department investigation should
explore whether waterboarding was authorized and whether those who
authorized it violated the law' (our emphasis)."

A
February 22 press release from Senator Durbin (D-IL) shared that
Jarrett had written the senators that Department's Office of
Professional Responsibility (OPR) was investigating and
would likely release an unclassified version of its report to the
public. Jarrett is a career prosecutor,
appointed to
his post by Janet Reno in 1998.

An international repercussion of the
February 5 testimony surfaced March 5, in Michael Isikoff and Mark
Hosenball's Newsweek article,
Tainted Evidence: Canada
tosses CIA terror testimony obtained through waterboarding. On
February 22, the Canadian Security Intelligence Service (CSIS), had
withdrawn "statements by alleged Al Qaeda leader Abu Zubaydah from
public papers outlining the case against two alleged terror 'sleeper'
operatives in Ottawa and Montreal." Spokesman Bernard Beckhoff would
not comment to the reporters on an active court case, but added, "The
CSIS director has stated publicly that torture is morally repugnant and
not particularly reliable. CSIS does not knowingly use information which
has been obtained through torture."

Mr. Bush has decided that the CIA should not
be limited in its interrogation techniques. While Congress voted in
large part along partisan lines, this is not a left-right issue. For
proof, see Ann Shibler's piece March 12 reaction to the failure of the
veto override for the John Birch Society, "Bush
Wants Torture."

By failing to overturn the veto, it
seems that 188 House members agree with President Bush who continues
to support the idea that the government should be free to use
torture. "I cannot sign into law a bill that would prevent me, and
future presidents, from authorizing the CIA to conduct a separate,
lawful intelligence program, and from taking all lawful actions
necessary to protect Americans from attack," he said.

In any case, there is nothing "lawful" or intelligent or "necessary"
about waterboarding or any other torture techniques. And torture
simply cannot "protect America from attacks." The techniques are
inhumane and immoral, and totally ineffective, but must somehow
satisfy some primal instinct of lower human nature, or they wouldn't
be so popular with so many.

The fact is, America should be above the various and sundry
barbarities, torture included, that seem to delight certain
instincts in some. It is important, therefore, to know who amongst
our legislators supports such uncivilized behavior so that, come
next election, citizens who favor civilized behavior can vote
accordingly.

You can check how your representative voted by clicking here. Notice
the almost perfect partisan lines that were kept; know then, that is
probably not about torture but partisan politics. And keep in mind
that "Yeas" are good, meaning they voted to override Bush's veto,
and the "Nay's" need to get a letter from their constituents, asking
why they condone and vote for immoral and brutal treatment of other
human beings when the folks back home understand torture when they
see it, and want it stopped.

As the Washington Times' Bruce Fein
noted during last October's confirmation hearings for Mukasey, "Waterboarding
was an odious feature of the Spanish Inquisition. It has been uniformly
prosecuted as torture by the United States military for more than a
century. It has been condemned by the State Department when utilized by
despots. "

And there are leaders in both parties who
oppose torture, as revealed by the collection of 37 essays published in
the January - March 2008 issue of Washington Monthly,
"No Torture. No Excuses." Republican Bob Barr, the former
Congressman from Georgia and a member of the American Conservative Union
points out that because "enhanced interrogation" is "essentially a
made-up term" "activities falling within its ambit are not—cannot
be—illegal." Barr has an apt description of the current situation:

As a teenager, I loved to read comic
books. Superman comics were my favorite. Among the many
adversaries the Man of Steel faced (and always vanquished) was
Bizarro World. In Bizarro World, everything was the opposite of
that which prevailed in our world. Up was down, clean was dirty,
black was white, good was bad ... you get the picture.

Events of the past few years remind me more and more of Bizarro
World, except now it's not a comic-book world, it's the real
world. The effect of witnessing a federal government operating
according to Bizarro World standards instead of those enshrined
in our Constitution and legal system is truly frightening.

"In no instance is this scenario clearer than when the current
administration has addressed the matter of whether its agents
have, since September 11, 2001, tortured prisoners.

Since, presumably, there has to be an
appropriation for the CIA, it remains to be seen how the Democratic
leaders in Congress and their few allies in the Republican Party will,
in the end, deal with Mr. Bush's veto. In a sense, the situation is
analogous to the expiration of the Protect America Act, after Mr. Bush
refused to consider any alternative to telecom immunity in updating the
FISA Act, which I last
examined for LLRX in October. In that case, in a
March 14 House vote, Mr. Bush's opponents have, at least for the
present, refused to accept his accusations of being soft on terror,
neither have they accepted the blame for his unwillingness to
compromise.